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ADA Blog

 

ADA Blog #95

Does your company attendance policy require employees to provide a doctor’s note that must include the nature of their health-related absence for such absences to be excused? This could violate the ADA, according to the EEOC. Dillard’s, Inc., a large retail chain, recently fired an employee for “absenteeism” for failing to provide a doctor’s note.

People are absent for lots of reasons. The ADA provision at issue prohibits employers from “making inquires of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be “job-related and consistent with business necessity.” These types of blanket policies are likely to elicit information about a disability and increase a company’s risk of potential discrimination.

Dillard’s attendance policy was unlawful because it permitted supervisors to conduct disability related inquiries by requiring a doctor’s note. Such a policy invites intrusive questions regarding employees’ medical conditions that would tend to elicit information about an actual or perceived disability. Dillard’s argued that the policy was necessary to verify the legitimacy of medical absences and to ensure that employees can safely return to work without posing a threat to themselves or others. The court rejected these arguments, opining that Dillard’s did not need to know the nature of an employee’s medical condition to accomplish these goals.

It’s no doubt, challenging for employers to manage health-related leave and to take steps to reduce excessive absenteeism or abuse of sick leave policies. Innocuous questions about an employee’s reasons for taking sick leave, even well-intentioned questions of concern, may be construed by a court as an improper inquiry into an employee’s disability. It is therefore imperative for management and HR personnel to limit health-related inquiries to the employee’s ability to perform his or her job responsibilities. If you’re not sure what constitutes a “disability-related inquiry” contact Springboard or subscribe to Springboard’s ADA Hotline for further assistance.

Shelley

This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.